Appeal No. 2006-2797 Page 9
Application No. 09/341,821
delivering “flowable materials,” including wound gels that have the characteristics of the
composition described by Court. Answer, page 7.
The Examiner bears the initial burden of showing unpatentability. See e.g., In re
Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993). A prima facie
case of obviousness requires evidence that the prior art suggested to those of ordinary
skill in the art that they should make the claimed subject matter, and that those skilled in
the art would have been motivated to do so with a reasonable expectation of success.
See In re Wilson, 424 F.2d 1382, 1385, 165 USPQ 494, 496 (CCPA 1970); In re Vaeck,
947 F.2d 488, 493, 20 USPQ2d 1438, 1442 (Fed. Cir. 1991).
Jass teaches its package for “separately storing and simultaneously dispensing
… a plurality of flowable materials.” Jass, Abstract. Jass describes his aerosol
container as a solution to prior art attempts to package materials in a multi-compartment
aerosol container which must be kept separate from each other until used. Id., column
1, lines 13-65. “The typical examples of materials which react when mixed and,
because of such reaction, must be kept separated from each other until used are …
dyes and developers for hair colorings, epoxy resin based paints and cements which
harden upon mixing.” Id., column 1, lines 30-36. Jass’s strippable gel bandage is
comprised of two phases that are separately stored in the two-compartment aerosol
package. When expelled on to the skin, they gel “at the site of use.” Id., column 9, lines
42-43.
Court teaches a composition in which all the ingredients are present together,
and does not disclose or suggest that they require separate compartmentalization. We
see no reason which would have motivated the skilled artisan to have used Jass’s two-
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